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June 2014

14 June 2014

It is still fairly uncommon to hear of the Vatican being mentioned in the context of transnational crime. It is not unheard of, however; I blogged about some of the transnational aspects of the sex abuse scandal a while back, and Pope Francis has rather famously “cleaned house” by having the Vatican ratify several TCL treaties and reforming the Vatican Bank to ensure it meets European anti-money laundering standards.

One interesting story that has been bubbling since last fall is that of Archbishop Jozef Wesolowski; the media reportage has been a bit spotty, so I will simply try to stitch together the facts from what I have read. Until last summer, Wesolowski, a Polish national, was the Papal nuncio to the Dominican Republic. In international law terms, the Vatican is a sovereign entity with a similar set of entitlements to those of states, and a nuncio is essentially a Vatican ambassador. The nuncio is the subject of the usual privileges that attach to diplomatic positions, including diplomatic immunity.

In July 2013, the archbishop of Santo Domingo informed Pope Francis of allegations that Wesolowski had sexually abused teenage boys in the Dominican Republic. In August 2013, Pope Francis recalled Wesolowski and removed him from the nuncio position. The Dominican authorities have reportedly opened a criminal investigation into the allegations, though it appears Wesolowski has not yet been charged.

In the meantime, prosecutors in Poland are apparently investigating Wesolowski regarding allegations that he committed sexual abuse in that country as well. As part of its investigation, the Warsaw provincial prosecutor’s office requested information from the Vatican about Wesolowski’s legal status. The Vatican’s reply was interesting: it indicated that Wesolowski is a citizen of the Vatican and that, under its laws, the Vatican does not extradite its citizens. Also, it confirmed that as a nuncio, Wesolowski would have the cover of diplomatic immunity. While media reports vary a bit on this point, it seems that Poland has not yet made an extradition request (probably because it seems pointless at the moment).

Now, the Vatican’s press people have been explicit in saying that they are not shielding Wesolowski from the criminal investigations in either Dominican or Poland. In fact, they are investigating him themselves, under the Vatican’s own criminal sexual abuse laws which were brought in last year (he is also the subject of an investigation under canon law, which could lead to him being disciplined or defrocked). They have acknowledged there is some question about whether those new laws could apply retroactively, though the Vatican did previously have criminal laws on their books that could address the conduct; those laws were apparently quite general in nature, amounting to a code of crimes against “good customs.”

There have, not surprisingly, been a number of criticisms of the Vatican over the case. Most of these are along the lines of “sure, the Vatican is saying they’re doing something about the abuse scandal, but there is no action.” Both the UN Committee on the Rights of the Child and the UN Torture Committee have called on the Vatican to ensure Wesolowski is prosecuted. And it is clear that nothing has happened, yet. Wesolowski is apparently holed up somewhere in Vatican City and no information is being released about him or the Vatican’s investigation.

So, what’s interesting about this case? First of all, the very fact that Wesolowski is being investigated under the Vatican’s new criminal laws dealing with sexual abuse means that they must have extraterritorial reach. This is much like the standard legal regime for many European civil law states—their constitutions forbid the extradition of nationals, so they exercise extraterritorial jurisdiction over the conduct of the nationals to ensure that there is not impunity for the crime (see Chapter 2 of our book).

The media reports only suggest that it is Vatican “laws” which prevent the extradition of its nationals; it is not clear whether those laws are constitutional laws or not, or whether they are subject to waiver. Let’s assume, though, that Vatican law completely prohibits the extradition of nationals. On that basis, the Vatican’s protestations that it is cooperating with the Dominican and Polish authorities ring a bit hollow. What kind of cooperation can they possibly be usefully providing if they will never ultimately extradite Wesolowski to face justice in either state? Since they are investigating him themselves, it would likely be more productive if Poland and the Dominican Republic are “cooperating” with the Vatican—in the sense of sending them evidence, interviewing witnesses and so on. Yet there is no indication as to whether this is happening.

So far as diplomatic immunity goes, the inability to extradite nationals makes this redundant. So far as I can see, Wesolowski was only nuncio to the Dominican Republic (and not to Poland). Any diplomatic immunity he enjoys would therefore only protect him from prosecution in Dominican—which is off the table because he can’t be extradited there. If there was some prospect of extradition, however, it’s important to note that diplomatic immunity can be waived by the home state of the alleged offender. Therefore, if he could be extradited he could be prosecuted.

Which brings me to my final set of points. The sexual abuse scandal has rocked the Catholic Church (of which I am a member, by the way), and with good reason. The crimes in which Wesolowski, among others, has been implicated are vile. Pope Francis has begun the first really serious effort to address the scandal, but even that effort is in its early days. Many of the abusing priests are getting old and the time for imposing criminal accountability upon them is running out. If the Vatican wants to show that it is serious about criminal prosecution, a significant effort regarding Wesolowski could give it a bit of a PR boost.

There is little doubt that this is a complicated investigation, involving as it does allegations of past criminal conduct in two countries, while the accused is located in (essentially) a third. One might surmise the investigation is made further complex by the Vatican’s lack of experience in dealing with prosecutions of these sorts of crimes under their own sexual abuse laws—which, as noted, date back only to 2013. We know nothing of what Vatican investigations are like, how skilled their police or prosecutors are, or whether they even have evidence-sharing or other cooperation arrangements in place so that they could secure evidence from either of the two locus states.

All of that being said, however, this matter has been under way for nearly a year. It is not unexpected that the investigation is not wrapped up yet, but given the significant public interest in this case—and the kind of case it represents—it is time for an update. The Vatican should stop being so secretive and at least indicate whether any progress is being made with the prosecution.

Moreover, if there is anything to the allegations (which seems likely), it will be extremely unfortunate if there are any impediments to an ultimate prosecution of Wesolowski. A prosecution by the Vatican should be seriously and competently undertaken, and it should be appropriately transparent. If either its laws or prosecutors are not up to the task, and if Vatican laws do allow for extradition in any circumstances, it should give careful consideration to extraditing Wesolowski to Poland, at least. Extradition to the Dominican Republic might be problematic, given that country’s poor human rights record. If there is truly a bar on extraditing Vatican nationals, then the law from which that bar emerges should be reconsidered. If diplomatic immunity is an issue, the Vatican should waive it.

It is well past the time that the Catholic Church took the criminal prosecution of sexual abuse perpetrators as seriously as the issue merits, and it should throw its full support and resources behind it. Ensuring Wesolowski is prosecuted, and soon, would be a good next step.

11 June 2014

I recently attended a conference entitled "Accountability for Leadership Participation in Universal Crimes and the Role of Judges," which was held in Bergen, Norway under the auspices of the Chr. Michelsen Institute. Our organizer and host was Terje Einarsen, former judge and now professor at the University of Bergen. I recently reviewed Terje's wonderful book, The Concept of Universal Crimes in International Law, for the JICJ; you can read the entire book -- for free -- here.

Terje invited me to take part in the opening discussion of the conference along with him, and we a very stimulating discussion about how what I would call "international crimes" but what Terje would call "universal crimes," should be analyzed and classified. We agreed that analysis and classification was important for a number of reasons, including the upholding internationally the principle of legality. That task finished, I went ahead and enjoyed immensely the rest of the two-day conference, which featured presentations from a speakers' list that read like a who's who of international criminal law -- my co-author Joseph Rikhof, Darryl Robinson of Queen's Law, Prof. Elies van Sliedregt, Kai Ambos, Morten Bergsmo, Naomi Roht-Arriaza, Elin Skaar, Harmen van der Wilt and Judge Howard Morrison of the International Criminal Court.

We also heard some excellent presentations about prosecutions happening (and, regrettably, not happening) in Guatemala, and were introduced to the ICC Legal Tools Project by Emilie Hunter, Deputy Director of the Case Matrix Network. All in all, one of the best conferences I have been to in years.

In the style of Bill Schabas's blog, here is a picture of a number of the conference participants, overlooking scenic Bergen.